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Review
Case No. 229/2005 CR 1896/2004

Review
Order No.17/2005

IN THE
HIGH COURT OF LESOTHO

In the
matter between

REX
Crown

V

Tanga
Qhola Accused

In Maseru
District

ORDER ON
REVIEW

Delivered
by Honourable Mr Justice T Monapathi On 20th day of September, 2005.

This
matter comes before me on automatic review. The Accused was found
guilty of having contravened section 15(e) of Local Passports
and
Travel Documents Act No. 11 of 1998. He was charged with only one
count.

Applicant
was found in possession of defaced, altered, destroyed passports
bearing different names. The documents are singled out
as local
passport No. N 277536, Local passport No. PO 64922 and two Republic
of South Africa ID documents bearing different names.

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The
outline of the evidence by Public Prosecutor indicated that there was
such unlawful activity to which Accused pleaded guilty.
In mitigation
Accused said he forged these documents because he wanted to get job
as there are no jobs. He was unemployed. He had
five (.5) children
who attended school.

The
learned magistrate in sentencing the Accused endorsed that Accused
was a dangerous person who engaged in unlawful activities.

Furthermore the sentence should be "both deterrent and
preventive". It is however not in every bad or extreme case that

option of a fine will not be imposed. This is so unless there is
aggravation. That an option of a fine should be imposed is
contemplated
by the legislature without in anyway removed the
presiding officer's discretion on sentence. See R V ARIWESHITO AND
OTHERS CASES
1964 (2) SA 699 (SB)- See also S V SCOUT 1969 (1) SA 545
(ECD) at 547 E-G. This case speaks about consideration of principle
where
accused was a first offender who otherwise led a good life.

The
learned magistrate also considered that the Accused had pleaded
guilty but his demeanour did not appear to be remorseful for
what he
had

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done. The
learned magistrate does not spell out although it is an issue of fact
about a matter arising after conviction. In any
event the learned
magistrate would still be misdirecting herself by regarding the
conduct of the Accused during trial as an aggravating
circumstance.
See R V TAGWIGWIRA 1969 (2) SA 656 as approved in S V MPITE 1969 (1)
SA 298(TPD). The leaned magistrate was in error.
The Accused was
sentenced to five (.5) years imprisonment without option of a fine
presumably because of his behaviour in court.
That should not be so.

I do not
accept that even if there had been aggravation or unless Accused had
had previous convictions, he should not be given an
option of a fine.
See S V MOKHETHI 1971 (2) SA 227(0). In the instant case the learned
Magistrate apparently showed anger at what
Accused had done. She
would have otherwise been more lenient and reasonable in the
circumstances of a first offender. In my view
and for that reason the
sentence ought to be varied.

Much as
the learned magistrate accepted that the Accused was involved in the
dangerous activity, he should have been given a maximum
option of a
fine which is M5000.00. This equally brings home to the Accused that
he

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should
desist from such unlawful activities. In no way would it be perceived
that the offence was minimized. In addition this alternative
fine is
now way out of proportion to the term of imprisonment. See R V
BAULENI 1954 (3) SA 272 (SR) at 273 F-G.

The
sentence should read "five (5) years imprisonment or M5000.00."

T
Monapathi

Judge

Copy: O/C
Central Prison

Director
of Prisons

O/C
Prisons Maseru

O/C
Police Maseru

Director
of Public Prosecutions

C.I.D
Maseru

All
Magistrates

All
Public Prosecutors